What is “overtime”?
Overtime under the Fair Labor Standards Act typically means any hours an employee works in excess of 40 hours during one workweek. An employee must receive 1.5 times their “regular rate” of pay for all of these hours. e.g. an employee who makes $10 an hour for his first 40 hours, must receive $15 for each hour he works in excess of 40 hours in a workweek. An employee’s workweek is seven consecutive twenty-four hour period and can start on any day of the week.
What is the “FLSA”?
President Roosevelt passed the Fair Labor Standards Act (“FLSA”) during the great depression. The broad federal labor law requires employers to pay both overtime and a minimum wage set by the federal government. The minimum wage is currently $7.25 an hour in Texas.
Is overtime required for holiday, weekend or night work?
Neither the FLSA nor any other federal or state law requires overtime pay for holiday, weekend or night work. However, if an individual employment agreement or collective bargaining agreement calls for increased or additional pay for holiday, weekend or night work, a court will enforce the terms of the employment agreement to provide employees with their contractually promised overtime.
Neither my employer nor I keep track of my time. Can I still file and win an FLSA overtime suit?
Under the FLSA, an employer must maintain time records. If an employer fails to meet its time-keeping obligation, it has the burden to dispute an employee’s reasonable time estimates in Court by showing the exact amount of hours worked by the employee. An employee’s estimates will usually hold up in court if they seem reasonable.
Is my job protected if I file an FLSA suit or make a complaint regarding overtime to my employer?
The FLSA has anti-retaliation provisions protecting employees from employer retaliation when they make complaints with the Department of Labor or file overtime lawsuits. These FLSA anti-retaliation provisions prevent employers from (1) terminating employees; (2) reducing employee hours; (3) discriminating or harassing employees; or (4) pressuring employees to settle or dismiss an FLSA or overtime lawsuit.
What constitutes “work time” under the FLSA?
Courts have widely held that “work time” or “time worked” includes all time spent performing job related activities that:
- genuinely benefit the employer,
- that the employer “knows or has a reason to believe” are being performed,
- and that the employer does not prohibit an employee from performing.
Can my employer average my work time during a pay period to avoid overtime payments accrued during only one workweek?
No, a 7-day workweek stands alone. For example, if you work 30 hours the first week and 50 hours the second week in a two-week pay period, you have a right to overtime for the second week because you worked in excess of 40 hours.
May an employee agree to waive his or her FLSA overtime or minimum wage rights?
No, employees may not bargain away or waive their FLSA overtime or minimum wage rights. Courts will invalidate contracts—such as severance agreements—that attempt to prevent employees from obtaining their legally required minimum wage and overtime payments.
Can my employer deny me overtime because it pays me compensatory or “comp” time?
Employers often grant employees provide employee “comp time” to avoid paying overtime. A “comp time” system involves granting time off for each hour an employee works in excess of 40 hours a week, which can be used at a later time. Unless an employee works in the public sector, comp time systems are not permitted. If your employer has a comp time system, it likely owes you overtime under the FLSA.
Are illegal aliens or undocumented employees entitled to overtime?
Yes, all employees—regardless of their legal status in the United States—have an entitlement overtime pay under the FLSA.
How do you prove that an employer knew an employee was performing off-the-clock work in an FLSA overtime case?
An employer has implied knowledge of an employee’s off-the-clock work when the employer could have “reasonably determined” that its employee had performed overtime work. Courts typically find an employer possesses knowledge of an employee’s performance of overtime work unless employees deliberately conceal their off-the-clock overtime work.
If you feel as though you have an unpaid wage or overtime claim, give us a call or text at (214) 790-4454 for a free consultation. Otherwise, you can provide your information for us in the contact form below and we’ll contact you back as soon as possible. We look forward to hearing from you.